The second category, including wetlands and open space and habitat protection, are a threat to property rights (something one could infer just from the fact that many anti-capitalist anti-technology leftists have jumped on the environmental bandwagon, mainly focusing on this second category of limitations).

Here is one of those situations that make me a true minority in this country: I greatly value wide-open undeveloped spaces and ranges for wild animals, but I don't expect the government to provide them for me nor do I ask other citizens to provide them to me against their will. Unfortunately, most of the other people in this country who value these things do in fact accept, and even demand, that government provide them. Every day, landholders are told by various government bodies that they cannot do what they like with their land, because other people who do not own the land like the land the way it is. These landholders are effectively expropriated of their land, in these cases without even the payment the New London Kelo victims received.

This is why I have always supported the private land trust movement, of which the Nature Conservancy is the most well-known example. These land trusts use private donations to buy out property owners and set aside property for various conservation purposes. This way, the people who value the conservation of the land pay the price for it, not the person who happens to be owning the targeted land.

I was sad to see, therefore, the Nature Conservancy revealed in Senate hearings as having a number of ethical lapses. , was all over this story. They describe the problems found as follows:

*A pattern of dealings with insiders that gave preferential treatment on land deals.

*Selling emissions credits, including a $10 million deal with General
Motors while GM's chairman John Smith served on TNC's board.

*Selling emissions credits that it may or may not have even owned,
essentially furthering its own environmental goals (buying land) at the
expense of another environmental goal (reducing greenhouse gases)

*Allowing oil and gas drilling on one of three known habitats of the
Attwater Prairie chicken, bumbling its way through the deal so that it
ended up in court, accused of cheating one of its partners, all while
pocketing over $8 million in royalties.

The report paints a picture
of an organization that had gotten so big, and so successful, that it
lost sight of why it was formed in the first place.

There is a lot of discussion about what reforms will help prevent this problem, and a lot of discussion about eliminating the tax deduction for conservation easements:

It has become clear that some people have been abusing the law that
allows tax deductions for conservation easements. The easement
deduction allows me to sell the development rights to my property to a
land trust. I keep the property the way it is, and everyone who buys it
from me agrees to keep it that way too. If it's wilderness, it stays
wilderness. If it's a ranch, it stays a ranch. In areas with lots of
development, that can be worth a ton of money. The big question, how
much? It's a subjective appraisal, and if both parties want to unfairly
jack up the value, the hearings have shown the IRS doesn't have the
manpower to catch it. And it's led to a cottage industry in easement
tax shelters, including millions of exemptions for golf courses,
driving ranges and backyards. Phony trusts were set up not to protect
land, but to act as tax shelters for the wealthy. As the facts come
out, it's outraging critics, and depressing supporters.

In these deals, one party keeps the land while another party. like TNC, buys the "development rights" and pays the legal bills over time to defend these rights. Personally, I have not been a big fan of conservation easements. "Forever" is a very long time, and there are always going to be incentives to cheat -- if not in this generation, then in the next. Also, such "conditional" property makes me nervous, somehow splitting property rights into two pieces, like a treasury strip. I can't say I can make a firm philosophic argument against it, but it makes me uneasy.

I would much prefer land trusts like TNC to forget about being enablers for conservation easements and get back to their original mission - buying land outright for conservation purposes. By buying it outright, you get away from all the problems of policing private land use of the easements an organization has taken on.

I have decided to continue to donate to the Nature Conservancy. They do a lot of cool stuff, and philosophically I much rather spend my money to have property purchased for conservation rather than to lobby Congress to force someone to conserve at the point of a gun. I just hope TNC can get its act together so it can continue to provide a viable private alternative to government coercion.

19 Comments

TNC's work seems good and noble and I'm glad that they're doing it. The problem is that it's not sufficient due to the hoary old problems of tragedy of the commons, free riders, and externalities. To the extent that land development causes problems that are externalized onto others (habitat destruction, reduced biodiversity, wetland destruction which has the same impact plus making floods more likely, increased traffic and autodependence), an economically rational owner of the land who profits more from said development than he or she loses in the marginal addition to the environmental problems it causes has an incentive to develop the land to the degree that everyone is hurt in the long run. Thus the need for publicly-mandated restrictions on land use.

queequeg:

To the extent that [human] development causes problems that are externalized onto others (habitat destruction, reduced biodiversity, wetland destruction which has the same impact plus making floods more likely, increased traffic and autodependence), an economically rational owner of [himself] who profits more from said development than he or she loses in the marginal addition to the environmental problems it causes has an incentive to develop [his habitat] to the degree that everyone is hurt in the long run. Thus the need for publicly-mandated restrictions on [anything and everything]

I'd like an explanation of how the things you list are worth using the police power of government to prevent them. Coyote makes a clear distinction between laws meant to preserve the property rights of surrounding landowners and those which serve a nebulous public good. The former are worth using police power for, the latter are not, since the rights of real people must come before the common good, whatever the government determines that to be on a particular day.

markm:

The Kelo decision has me wondering whether the Nature Conservancy approach is going to accomplish anything except to hold big blocks of land together until the local government decides that a shopping center or factory there would be more to the "public benefit" (= more taxes for them spend).

Lawrence:

For an alternate theory explaining global warming check out the Maunder Minimum. This theory involving a variable output sun back tests quite well with history, something current green house gas models do not.

Great post. I've repeatedly tried to explain at my own blog that the best way to protect the environment is to buy it.

As I understand it, the problem (or at least a problem) with conservation easements is that many of them are actually essentially worthless because there are already development restrictions in place (e.g., a home in a designated historic district). But, like a "donate your car" charity that inflates the fair market value so the donor gets an inflated tax break, the conservation groups are willing to declare a positive value to the conservation easement -- perhaps in exchange for an additional cash contribution on the side (i.e., the donor buys a tax deduction at a discount).

I can't speak to The Nature Conservancy itself, but to the extent this is happening at all, it's really a shame.

Let's not forget the massive government funding the Nature Conservancy receives. This is just another way for government to provide open spaces, etc., at someone else's unwilling expense. Markm's conjecture brings up the flip side of this - if land acquired through private purchase finds it's way into government hands, their possession of it is a defacto use of tax money in that they are foregoing the revenue they could raise (offsetting the need for some portion of tax collections) by retaining it rather than selling it. And of course, the chance of the price paid to TNC being artifically inflated above market price is very high. If they do sell it to developers, then it is no different than if TNC sold it directly, and is perfectly legitimate, except for the skimming as it briefly passes through government's hands.

Quincy - to answer your question, there is an element of arbitrariness in lots of kinds of property ownership, defined by government. Most people don't own their homes outright, for example, but rather owe secured debt on them through a complex web of financial relationships facilitated by government tax subsidies (like the home mortgage deduction) and quasi-public agencies (like Freddie Mac and Fannie Mae). Property ownership has always been characterized as a "bundle of rights", with various strands in the bundle being added or subtracted as a matter of public policy. One way government adds to them is by sanctioning intellectual property, which doesn't exist in a state of nature, and one way government subtracts from them is by zoning, so that you can't build a factory in the middle of a residential area.

Given this subjectivity, I really don't buy the distinction you make between property uses that negatively affect property holders adjacent to them and property that negatively impact everybody. If anything, the latter seems more compelling to me.

It's hard to take anyone seriously who defines the failure to tax someone as a subsidy. Bhy that logic, I have been subsidizing you all my life becasue I have failed to break into your house to steal your stereo and silverware.

The complex web of financial relationships is anything but arbitrary. It is a series of voluntary exchanges of property done in the best interests of all parties involved. Except for Freedie Mac, etc. That is an arbitrary interference in the process that is itself a violation of property rights. That it has the effect of being an unasked for and unavoidable subsidy does not invalidate the rest of the process nor the right to the property in question.

You're right that intellectual property rights don't exist in the state of nature - no rights do. All rights are social constructs created when men choose to interact. But they are not mere expressions of collective preference. Rights, including IP rights, are derived from and must be validated against facts that exist equally in the state of nature, an abject tyrrany, or anything in between. To imply that the "bundle of rights" that makes up the ownership of a home can be arbitrarily created by government and thus arbitratily revoked by government is just a cheap excuse to continue supporting the taking of those rights when it seems convenient.

Finally, you equate negaively affecting propety holders with violating property rights. This is entirely arbitrary and unsupportable. There is no way to objectively define harm except for that subset of harm that is the violation of rights. Not all effects on someone involve rights. If I somehow change the view of a distant mountain to a view you find less preferable, it has in no way affected your rights, as you have no right to the mountain appearing a certain way. Not one of the things mentioned in your original post, except possibly flooding, is a violation of rights, nor are they objectively and universally harmful.

You really have to engage in some intellectual gymnastics to try and preserve your fetish for using the power of govermment against your fellow man in order to satisfy your petty wishes But you're working without a net, and you'll find it working to your detriment in the long run.

The difference is very simple: The harms which come to adjacent property owners happen to real individuals and real property. Harms which supposedly hurt us all are so categorized because they cannot be linked back to actual individuals. You've still yet to explain how habitat destruction, reduced biodiversity, and increased auto-dependence harm REAL PEOPLE. You talk about the ethereal harm done to all society. The US government, though, was conceived to protect the rights of individuals from encroachments by other individuals, other nations, and the government itself. Sacrificing a individual's rights, property or otherwise, to achieve some hardly-provable common good is not something that government should have a hand in.

Imagine if it became the common good to develop all unused land in order to keep up with the surging economies in Asia. Would you support the forced development of the lands owned by the Nature Conservancy? Would you support the eviction of retirees from their homes so that the land could be put to more economically purposes? I doubt you would. I doubt anybody would. We have to remeber Ronald Reagan's admonishment on the power of government, "What government gives government can take away."

The rights we have come from our history, our tradition, and most importantly, what we believe it is to be human. They do not come from the Constitution, nor are they granted at the grace of the sovereign. The Constitution does not grant rights, merely articulates certain ones. Property rights, along with life, liberty, the rights to free speech, religion, press, and assembly, the right to bear arms, the right not to incriminate one's self, the right to be secure in one's person and papers, and the right to legal due process were all deemed so important that the framers felt the need to clearly articulate them.

Rather than being an arbitrary grant of government, the framers viewed property rights as THE cornerstone of functioning democracy. Without the ability to own and use property, one is essentially powerless. If one is always on someone else's property, he is always under someone else's control. A glimpse of this phenomenon is seen in apartments, where the hanging of pictures can become a major ordeal.

As for the private mortgage system, as Kyle states, there is nothing arbitrary about it. The lender agrees to buy the property for you and allows you to occupy it and generally make use of it in return for payments with interest which generate income for the lender. When you've finished paying for the home (principal) and the lender's services (interest and fees), you own the home. It's one of the ingenious products of a free market system where each person is out for his own best interest.

All this, though, is a digression. The real question, indeed the burden of proof any issue involving common good, is whether the harm is so great as to justify the curtailment of individual rights. There is, though, a greater challenge than that: When actions cause no measurable harm to any individual, should individuals be deprived of their rights to prevent them?

Not stealing my stuff isn't the same thing as not taxing me because I get something in return for my taxes. If I get the same services that I received before except now I pay less for it, that works out to be the same thing as a subsidy.

The agreements that facilitate property ownership are voluntary, but without recourse to the state to enforce them, they're meaningless. Because so many contracts are required for there to be property ownership on a mass scale like we have in the U.S., the efficacy of the government has a lot to do with securing the means to property ownership, even without taking the tax breaks and Freddie Mac into account. Not to mention things like police forces, fire departments, and militaries, who protect your property in other ways.

In other words, private property ownership on the scale we have it today in the U.S. isn't possible without the government's intervention. In general, this is a positive social development and a good policy. But at the same time I have a hard time accepting that the government can intervene to facilitate property ownership but then has no legitimate role in regulating it due to environmental consequences. The balance that gets struck is a matter of policy.

I don't buy the distinction between harms that affect people in a big way because they are adjacent to a parcel of property and harms that affect everybody in marginal but insidious ways, like environmental damage. Assuming for the sake of argument that biodiversity is an ethereal concern, then I accept that property should not be regulated for that reason. It's precisely because I think declining biodiversity is a bad thing for human survival in the long run that makes it a legitimate basis upon which to regulate property. Where I stand turns on the factual issue of whether the harm is real or not. I'm not sure from your post that you'd accept a basis for regulation even if it was undisputed that something causes harm.

Not stealing my stuff isn't the same thing as not taxing me because I get something in return for my taxes. If I get the same services that I received before except now I pay less for it, that works out to be the same thing as a subsidy.

The agreements that facilitate property ownership are voluntary, but without recourse to the state to enforce them, they're meaningless. Because so many contracts are required for there to be property ownership on a mass scale like we have in the U.S., the efficacy of the government has a lot to do with securing the means to property ownership, even without taking the tax breaks and Freddie Mac into account. Not to mention things like police forces, fire departments, and militaries, who protect your property in other ways.

In other words, private property ownership on the scale we have it today in the U.S. isn't possible without the government's intervention. In general, this is a positive social development and a good policy. But at the same time I have a hard time accepting that the government can intervene to facilitate property ownership but then has no legitimate role in regulating it due to environmental consequences. The balance that gets struck is a matter of policy.

I don't buy the distinction between harms that affect people in a big way because they are adjacent to a parcel of property and harms that affect everybody in marginal but insidious ways, like environmental damage. Assuming for the sake of argument that biodiversity is an ethereal concern, then I accept that property should not be regulated for that reason. It's precisely because I think declining biodiversity is a bad thing for human survival in the long run that makes it a legitimate basis upon which to regulate property. Where I stand turns on the factual issue of whether the harm is real or not. I'm not sure from your post that you'd accept a basis for regulation even if it was undisputed that something causes harm.

As I said before, not all harms are rights violations. Rights violations are a subset of harms distinguished by (in effect) the fact that they are guaranteed - a priori to any empirical observation of their actual effects - to be universally harmful. Rights are what they are not because their actual violation has been observed to be harmful, but because empirical observation of the nature of conscious beings identifies them as absolute requirements for the continual functioning of the consciousness. Property is one of those rights. I do not support any basis of regulation for anything short of a rights violation, even if the harm was undisputed. There is no right to biodiversity.

If one company goes out of business because a competitor did a better job, that is a harm. But it is not a rights violation because there is no right to have a successful business. The only right involved is to engage in whatever voluntary trade a businessman can convince his customers to engage in, and in the form that he and his customer agree to. But your logic would have that harm mitigated by government regulation that changes the nature of the trade itself, with the effect that it is no longer voluntary.

You have a hard time accepting "that the government can intervene to facilitate property ownership but then has no legitimate role in regulating it due to environmental consequences" because you have no understanding of the nature of the government's actions and how the two are completely different. Government does not create the right to property. Government, in facilitating and enforcing contracts, acts to support an already existing right - one that would exist, though possibly unenforced, even if no government were present. It is not intervention to protect that right, it is a service provided on behalf of the parties involved without changing the nature of the transaction in any way. Regulating business, the way you wish for, is intervention in that it acts against the parties involved, and changes the nature of the transaction, on behalf of third parties not involved in the transaction. But just as the government cannot create the right, it also cannot take it away. The right to unfettered business exists even when the government abrogates it.

Your difficulty seems to be in the apparent contradiction that we accept government regulation on one hand, but then reject it in another case. This is based on confusing two very different concepts, both of which are these days described by the term "regulate". In the 18th century meaning of the word "regulate" (the meaning under which the supreme law of the land was written) it meant merely to make regular, to make consistent and predictable. The regulation of property rights is only that which provides a consistent framework under which transactions can be entered into and enforced - it is completely agnostic as to the nature of the transaction.

The perverse current meaning of "regulate" is to modify the transactions themselves so as to produce some desired outcome. This is almost the complete opposite meaning. When you say, in effect, that we support regulation in the purchase of property but reject it in pursuit of environmental goals, you are using the same word with two different, contradictory meanings. Understanding that, there is no contradiction in the position you say you have a hard time accepting.

lvcipriani:

TNC doesn't always hold on to the land it buys. The purchases are often turned over to gov't agencies, so then they are under bureaucratic management instead of private ownership. TNC gets a chunk of cash from the gov't, or trades it for another piece of land, and buys another piece of land. This is why I stopped donating to TNC, they should keep the land they buy instead of the gov't owning the land. Gov't land ownership should be kept to a minimum, and not lock up rediculous amounts of land that future generations will need.

My minimum threshold is empirically-provable harm caused to real people. I refuse to accept regulation based on the fact someone thinks something will be harmful, or merely because they cannot prove it is absolutely safe. That is a clear line.

You have offered NO PROOF that what you contend is harmful is harmful, merely assertions. You're right, of course, that I don't accept those assertions as a basis for regulation. If you're going to claim that something harms everyone, I want proof then that it really does harm everyone. How am I affected by reduced biodiversity in the Everglades, which is 3,000 miles from me?

Moreover, how are my RIGHTS harmed by reduced biodiversity in the Everglades? The rights enumerated in the Bill of Rights are there because they were considered the cornerstone rights of the republic. Central to those is the right to property. Can you look at the rights there and prove that ANY of the harms you cite as impacting anyone infringe upon any of them? Conversly, can you cite any land use regulation which does not impact any of the rights enumerated therein?

If the role of government has suddenly change to making the US a utopian paradise rather than securing the rights of individuals, then you're claims would hold some water. Until then, and as long as the Constitution is in force, the rights of individuals shoud be held in the highest regard when considering regulation. (I do not accept the argument that, since many regulators already ignore the rights of individuals, that they should no longer be considered.)

My minimum threshold is empirically-provable harm caused to real people. I refuse to accept regulation based on the fact someone thinks something will be harmful, or merely because they cannot prove it is absolutely safe. That is a clear line.

You have offered NO PROOF that what you contend is harmful is harmful, merely assertions. You're right, of course, that I don't accept those assertions as a basis for regulation. If you're going to claim that something harms everyone, I want proof then that it really does harm everyone. How am I affected by reduced biodiversity in the Everglades, which is 3,000 miles from me?

Moreover, how are my RIGHTS harmed by reduced biodiversity in the Everglades? The rights enumerated in the Bill of Rights are there because they were considered the cornerstone rights of the republic. Central to those is the right to property. Can you look at the rights there and prove that ANY of the harms you cite as impacting everyone infringe upon any of them? Conversly, can you cite any land use regulation which does not impact any of the rights enumerated therein?

If the role of government has suddenly change to making the US a utopian paradise rather than securing the rights of individuals, then you're claims would hold some water. Until then, and as long as the Constitution is in force, the rights of individuals shoud be held in the highest regard when considering regulation. (I do not accept the argument that, since many regulators already ignore the rights of individuals, that they should no longer be considered.)

Lenit:

Have you heard about the Ruby River battle in Montana? Private ownership/conservation vs. public access/degradation of the land. New West has some articles on it. You probably wouldn't agree with their viewpoint, but it's an interesting angle.